Mr. Justice Mercur
delivered the opinion of the court October 2d 1882.
The plaintiff declared in assumpsit on an implied contract for use and occupation of a certain dwelling-house. The defendant had rented the house aud occupied it for twenty months. Then she withdrew therefrom, notified the plaintiff, paid the rent up to that time, and tendered the key, which the plaintiff retained in such a manner as not to release her from liability for the unexpired portion of the year in case she was legally chargeable therefor.
The plaintiff claims she was a tenant from year to year, and seeks to recover rent for four months after she left the house. The defendant alleges she rented by the month and was not liable beyond the months of her occupancy. The letting was by parol and the evidence as to its terms, was conflicting. The learned judge charged the jury, “ if it was a letting for fifty dollars per month, without anything being said about a year, then the plaintiff cannot recover the amount here claimed.”
The only specification of error is to this charge. The plaintiff claims whether the original lease was by the year or by the month, inasmuch as the defendant held over beyond a year she can be required to pay for the whole of the second year, although she did not occupy the premises during any part of the last four months. Had the lease been by the year the tenant might be so liable : Diller v. Roberts, 13 S. & R. 60 ; Phillips v. Monges, 4 Whar. 226 ; Hemphill v. Flynn, 2 Barr 144. All these were cases where the letting was by the year. They recognize a sound principle. When a landlord has let specific property by the year it would be manifestly unjust to compel him, against his will, to assent to a renewal for such shorter term as the will or caprice of his tenant might dictate.
If the lessee enters as a tenant by the year, and holds over it is optional with the landlord, either to treat him as a tenant from year to year, or as a trespasser: Hemphill v. Plynn, supra.
It is true for some purposes the lessee for any certain time less than a year is recognized as a tenant for years : 2 Bl. Com. 140 ; Shaffer v. Sutton, 5 Binn. 228.
When, however, we are dealing with the question of an implied renewal of a tenancy, all the terms of. the former lease must be considered. The purpose is not to make a new lease essentially different; but to continue the former so far as its terms may be applicable. In its very nature the implied renewal of a lease assumes a continuation of its characteristic features. Hence if a landlord elect to treat one holding over as a tenant, he thereby affirms the form of tenancy under which the tenant previously held. If that was a.tenancy by the month it will presumptively so continue. The landlord cannot impose a longer term ; nor one radically different from the former.
In case a tenant by the month holds over, it will not bo claimed that he is entitled to three months’ notice to quit. If the tenancy be by the month, a month’s notice to quit is sufficient. Taylor’s Land. & Tenant, § 57.
The jury has found the letting was by the month only. The tenant then had a right to leave when he did, and was not legally chargeable for use and occupation thereafter.
Judgment affirmed.